second_amendment_to_the_united_states_constitution
Snippet from Wikipedia: Second Amendment to the United States Constitution

The Second Amendment (Amendment II) to the United States Constitution protects the individual right to keep and bear arms. It was ratified on December 15, 1791 as part of the Bill of Rights.

In District of Columbia v. Heller (2008), the Supreme Court affirmed for the first time that the right belongs to individuals, for self-defense in the home, while also including, as dicta, that the right is not unlimited and does not preclude the existence of certain long-standing prohibitions such as those forbidding "the possession of firearms by felons and the mentally ill" or restrictions on "the carrying of dangerous and unusual weapons." State and local governments are limited to the same extent as the federal government from infringing upon this right.

The Second Amendment was based partially on the right to keep and bear arms in English common law and was influenced by the English Bill of Rights of 1689. Sir William Blackstone described this right as an auxiliary right, supporting the natural rights of self-defense and resistance to oppression, and the civic duty to act in concert in defense of the state. Any labels of rights as auxiliary must be viewed in the context of the inherent purpose of a Bill of Rights, which is to empower a group with the ability to achieve a mutually desired outcome, and not to necessarily enumerate or rank the importance of rights. Thus all rights enumerated in a Constitution are thus auxiliary in the eyes of Sir William Blackstone because all rights are only as good as the extent they are exercised in fact.

While both James Monroe and John Adams supported the Constitution being ratified, its most influential framer was James Madison. In Federalist No. 46, Madison wrote how a federal army could be kept in check by state militias, "a standing army ... would be opposed [by] a militia." He argued that state militias "would be able to repel the danger" of a federal army, "It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops." He contrasted the federal government of the United States to the European kingdoms, which he described as "afraid to trust the people with arms," and assured that "the existence of subordinate governments ... forms a barrier against the enterprises of ambition".

By January 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several amendments were proposed, but were not adopted at the time the Constitution was ratified. For example, the Pennsylvania convention debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to the Bill of Rights to assure ratification.

In United States v. Cruikshank (1876), the Supreme Court ruled that, "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments [sic] means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government."

In United States v. Miller (1939), the Supreme Court ruled that the Second Amendment did not protect weapon types not having a "reasonable relationship to the preservation or efficiency of a well regulated militia."

In the twenty-first century, the amendment has been subjected to renewed academic inquiry and judicial interest. In Heller, the Supreme Court handed down a landmark decision that held the amendment protects an individual's right to keep a gun for self-defense. This was the first time the Court had ruled that the Second Amendment guarantees an individual's right to own a gun.

In McDonald v. Chicago (2010), the Court clarified that the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment against state and local governments. In Caetano v. Massachusetts (2016), the Supreme Court reiterated its earlier rulings that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding" and that its protection is not limited to "only those weapons useful in warfare."

The debate between various organizations regarding gun control and gun rights continues.

The Second Amendment to the United States Constitution

see also Gun rights - Right to Keep and Bear Arms

The Second Amendment to the United States Constitution states:[1] “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

America is a Great Nation precisely because it is a Constitutional Republic with a Bill of Rights that enumerates some of our God-given, intrinsic, inherent, inalienable, moral rights, especially the right to bare arms for self defense (Second Amendment).

The Second Amendment helps to empower ordinary Citizen Patriots and the Milita to protect and defend the Constitution against all enemies foreign and domestic. The Second Amendment helps to enforce the remaining nine amendments against usurpation by the tyranny of tyrants (especially the oligarchy of economic tyranny of the banksters such as the Federal Reserve, the IRS, the Rothschilds, the World Bank and IMF, the globalists, the United Nations and the Federalists, from religious tyranny of Islamist-Fundamentalist Muslims with their sharira law and jihad, and from the tyranny from the Peoples Republic of China, Russia and other statists (nanny state), socialists, fascists, and communists.

This Great Nation is a Constitutional Republic, not merely a democracy with potential for mob rule, thanks to our wise and compassionate Founding Fathers, especially Thomas Jefferson, Benjamin Franklin, James Madison, George Washington, John Adams, Thomas Paine, and Patrick Henry.

Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.”

One should immediately and seriously Invest in Tangibles, in order to help protect yourself, your family, your community, and this Great Nation in our American democracy where both the voters and politicians either don't respect or don't understand that America is not merely a democracy, but is actually a Constitutional Republic.

see Constitution, republic

“To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.” - Richard Henry Lee, Virginia delegate to the Continental Congres, initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights.

see also education

see Second Amendment and Second Amendment

NRA Second Amendment Center - www.nraila.org

“We beg no longer; we entreat no more; we petition no more. We defy them!” - William Jennings Bryan, 1896

James Madison

“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.” - James Madison, Federalist Papers No. 46, 1788


Thomas Jefferson

Thomas Jefferson confirmed this understanding saying, “No free man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government”.


Quotations

“For a people who are free, and who mean to remain so, a well-organized and armed militia is their best security.” - Thomas Jefferson


See also Founding Fathers, Thomas Jefferson, Benjamin Franklin, Declaration of Independence, Constitution, Bill of Rights, Second Amendment

Second Amendment to the U.S. Constitution's Bill of Rights
Founding Fathers, Bible and HH Dalai Lama on Guns

“Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” – Benjamin Franklin

“Laws that forbid the carrying of arms, disarm only those who are neither inclined, nor determined to commit crimes. Such laws make things worse for the assaulted and better for the assailants. They serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”

Thomas Jefferson, 1764

“Liberty must be refreshed from time to time with the blood of patriots and tyrants” - Thomas Jefferson

“ …arms…discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. …Horrid mischief would ensue were the law-abiding deprived the use of them.”

- Thomas Paine.

“For it's 'guns this' and 'guns that', and 'chuck 'em out, the brutes',

But they're the 'Savior of our loved ones' when the thugs begin to loot.”

- Rudyard Kipling in Tommy Atkins

“The Constitution shall never be construed … to prevent the people of the United States who are peaceable citizens from keeping their own arms.” – Samuel Adams

“It is God that arms me with strength and makes my way perfect.” Psalms 18:32

“…and whoever has no sword is to sell his coat and buy one. ” Luke 22:36

-Democracy is two wolves and one sheep voting on what to have for lunch.

-Liberty is a well-armed sheep contesting the outcome of the vote.


Snippet from Wikipedia: Second Amendment to the United States Constitution

The Second Amendment (Amendment II) to the United States Constitution protects the individual right to keep and bear arms. It was ratified on December 15, 1791 as part of the Bill of Rights.

In District of Columbia v. Heller (2008), the Supreme Court affirmed for the first time that the right belongs to individuals, for self-defense in the home, while also including, as dicta, that the right is not unlimited and does not preclude the existence of certain long-standing prohibitions such as those forbidding "the possession of firearms by felons and the mentally ill" or restrictions on "the carrying of dangerous and unusual weapons." State and local governments are limited to the same extent as the federal government from infringing upon this right.

The Second Amendment was based partially on the right to keep and bear arms in English common law and was influenced by the English Bill of Rights of 1689. Sir William Blackstone described this right as an auxiliary right, supporting the natural rights of self-defense and resistance to oppression, and the civic duty to act in concert in defense of the state. Any labels of rights as auxiliary must be viewed in the context of the inherent purpose of a Bill of Rights, which is to empower a group with the ability to achieve a mutually desired outcome, and not to necessarily enumerate or rank the importance of rights. Thus all rights enumerated in a Constitution are thus auxiliary in the eyes of Sir William Blackstone because all rights are only as good as the extent they are exercised in fact.

While both James Monroe and John Adams supported the Constitution being ratified, its most influential framer was James Madison. In Federalist No. 46, Madison wrote how a federal army could be kept in check by state militias, "a standing army ... would be opposed [by] a militia." He argued that state militias "would be able to repel the danger" of a federal army, "It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops." He contrasted the federal government of the United States to the European kingdoms, which he described as "afraid to trust the people with arms," and assured that "the existence of subordinate governments ... forms a barrier against the enterprises of ambition".

By January 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several amendments were proposed, but were not adopted at the time the Constitution was ratified. For example, the Pennsylvania convention debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to the Bill of Rights to assure ratification.

In United States v. Cruikshank (1876), the Supreme Court ruled that, "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments [sic] means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government."

In United States v. Miller (1939), the Supreme Court ruled that the Second Amendment did not protect weapon types not having a "reasonable relationship to the preservation or efficiency of a well regulated militia."

In the twenty-first century, the amendment has been subjected to renewed academic inquiry and judicial interest. In Heller, the Supreme Court handed down a landmark decision that held the amendment protects an individual's right to keep a gun for self-defense. This was the first time the Court had ruled that the Second Amendment guarantees an individual's right to own a gun.

In McDonald v. Chicago (2010), the Court clarified that the Due Process Clause of the Fourteenth Amendment incorporated the Second Amendment against state and local governments. In Caetano v. Massachusetts (2016), the Supreme Court reiterated its earlier rulings that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding" and that its protection is not limited to "only those weapons useful in warfare."

The debate between various organizations regarding gun control and gun rights continues.


Beans Bullets and Band-Aids

The three Bs: “Beans, Bullets, and Band-aids”. This is a great way to summarize necessities of survival and for the fear of becoming the 20 “Bs” of survival or the 30 “Bs” of survival, it should probably remain the three Bs. However, one can see the use of the five Bs of survival being closer to my mentality: Beans, Bullets, Band-Aids, Books, and Bullion.

As part of Disaster Preparedness, bullets in “Beans, Bullets, and Band-aids” refers to both hunting and self defense (see Second Amendment which includes not only security but also guns (firearms) such as rifles (rimfire rifles, hunting rifles, combat rifles or carbines), handguns including semi-automatic pistols and revolvers, shotguns, ammunition (called cartridges or rounds), airguns, air rifles, air pistols, slingshots, bow and arrow, crossbow, knives, mace and pepper spray, and stun guns.


Survival Arms

Pistol - Handguns

““The handgun … an entire class of arms that Americans overwhelmingly choose for the lawful purpose of self-defense…it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home. U.S. Supreme Court, District of Columbia V. Heller June 26 2008

http://www.thesurvivalistblog.net/glock-model-21-40-caliber/

Firearms Storage
Gun Confiscation

Congress took action after Katrina. There are probably still loopholes, however.

http://www.govtrack.us/congress/billtext.xpd?bill=h109-5013

Text of H.R. 5013 [109th]: Disaster Recovery Personal Protection Act of 2006

[The relevant portion;]

SEC. 706. FIREARMS POLICIES.

(a) Prohibition on Confiscation of Firearms- No officer or employee of the United States (including any member of the uniformed services), or person operating pursuant to or under color of Federal law, or receiving Federal funds, or under control of any Federal official, or providing services to such an officer, employee, or other person, while acting in support of relief from a major disaster or emergency, may–

(1) temporarily or permanently seize, or authorize seizure of, any firearm the possession of which is not prohibited under Federal, State, or local law, other than for forfeiture in compliance with Federal law or as evidence in a criminal investigation;

(2) require registration of any firearm for which registration is not required by Federal, State, or local law;

(3) prohibit possession of any firearm, or promulgate any rule, regulation, or order prohibiting possession of any firearm, in any place or by any person where such possession is not otherwise prohibited by Federal, State, or local law; or

(4) prohibit the carrying of firearms by any person otherwise authorized to carry firearms under Federal, State, or local law, solely because such person is operating under the direction, control, or supervision of a Federal agency in support of relief from the major disaster or emergency.


Why I WILL NOT Obey California’s Gun Registration Edict

by Brian Puckett

(For those hesitant to read the entire statement,

PLEASE READ THE LAST TWO SECTIONS FIRST.)

A brief summary of the situation

The Democrat-controlled government of California has recently issued two edicts, one that bans ownership of SKS rifles with detachable magazines and requires their surrender to the state, and one that bans buying, selling, or lending of so-called ”assault weapons” and that requires present owners of such arms to register them. The edicts take effect January 1, 2000. For all those who have in the past stated that, “When the state starts confiscating guns, then I'll know it's time to fight back,” that time in California will be January 1, 2000.

Many people oppose gun registration because it precedes gun confiscation. Indeed it does, as those who were foolish enough to register their SKS’s are now discovering. However, that is a practical reason to oppose registration, not a legal reason. And while avoiding confiscation is tangentially a moral reason to oppose registration, neither is it a legal reason. Refusing to obey a law because of what might happen or what has happened in other cases will not stand up in court. But there is a reason not to register or turn in any firearm that is practical, moral, and legal.

Two questions to answer

As regards the Second Amendment, determining the constitutionality of the California edicts mentioned above forces the examination of two basic questions. One, which arms are protected by the Second Amendment? And two, is registration an “infringement” of the Second Amendment’s right to keep and bear arms? Fortunately, answering these questions is not a difficult or mysterious task. But they should be answered thoroughly.

What is the Bill of Rights?

In these United States, the Bill of Rights is not separate from the Constitution but is an integral part of it, as are all the other amendments. However, the Bill of Rights is special in that-like sections of the Declaration of Independence - it contains many of the core philosophical underpinnings of our American government (especially the First Amendment, Second Amendment, Ninth Amendment, and Tenth Amendment). Therefore, the Bill of Rights is easily the most important part of the U.S. Constitution. The rest of the Constitution, along with most of the remaining Constitutional Amendments, deals primarily with the mechanics of putting this philosophy into effect in the form of a republic.

In the original document that we call the Bill of Rights, the Bill’s ten enumerated items are listed as “articles”. Those familiar with the history of the Constitution are aware that these articles were not afterthoughts, but were crucial elements whose written inclusion in the Constitution was insisted upon before certain states would agree to Constitutional ratification of the preceding text. Because of this, a powerful case can be made that none of these first ten articles may be modified or revoked, because that would alter the fundamental philosophy underlying the Constitution and would violate the original agreement among the states.

The purpose and meaning of the Second Amendment

The laws of the pre-U.S. colonies and the writings of the Founding Fathers clearly reveal that they, like all civilized humans, embraced the personal, common-law right of self-defense and property defense. The Founders’ writings, such as the Federalist Papers, also clearly reveal their belief that self-defense includes defending oneself against a government gone bad. In fact the evidence shows that this latter item is a primary reason they included the Second Amendment in the Bill of Rights, and the reason for the Second Amendment’s reference to the militia-the “army of citizens” (as opposed to the regular army).

The Second Amendment specifies the right of the people to keep and bear arms. If the people are to keep and bear them this must include, at the very minimum, personal arms - that is, arms that a single individual may carry and employ. For hundreds of years prior to the writing of the Constitution, the Western world’s most advanced and cherished personal arm had been the firearm. Furthermore, the firearm is the sole arm continually singled out in the Founders’ writings. Owning firearms was a right exercised in North America long before the existence of the United States.

To mean anything, rights must include associated necessities

For any given right, it is meaningless to affirm that right if the tools or necessities of effecting that right are prohibited. Consider our Bill of Rights:

It is meaningless to affirm the First Amendment’s right to free exercise of religion if people are prohibited to own religious texts such as Bibles, Torahs, Korans, and Sutras.

It is meaningless to affirm the First Amendment’s “freedom of the press” if people are prohibited to own printing presses (or today’s electronic methods of mass communication such as a website like a Wiki or Blog).

It is meaningless to affirm the Third Amendment’s right to refuse to lodge a soldier in one’s home, or the Fourth Amendment’s right to be secure in one’s home, if people are prohibited from owning your own home.

It is meaningless to affirm the Sixth Amendment’s right to defense counsel if people are prohibited to use their own or public money to pay for an attorney’s services.

And it is beyond meaningless – it is absolutely absurd – to affirm the Second Amendment’s right to keep and bear arms if people are prohibited from owning arms.

Applying the above-mentioned general principle of rights to the Second Amendment, it would be correct to state that it is meaningless to affirm the right to self-defense if people are prohibited from owning the tools or necessities of self-defense.

For example, consider elderly people, women, the physically handicapped, small-statured men, or anyone who is not a master of unarmed combat being faced with a large, or muscular, or armed assailant, or multiple assailants. It happens every day in this country. It is absurd, illogical, illegal, and inhumane to uphold their right to self-defense while prohibiting them from owning the most portable, easy to use, proven, and inexpensive of instantly effective self-defense tools – guns.

Which arms are protected by the Second Amendment?

Along with “the people”, the Second Amendment specifically mentions the militia, consisting of armed citizens not enlisted in any regular military corps - the “citizen army”. The militia’s purpose is, as its name implies, a military one. The militia was - and still may be - pitted against other military forces. That was true in pre-U.S. North America, it was true during the Revolutionary War, and it is true today.

If the militia may be pitted against regular soldiers, whether of a foreign invader or of a tyrannical domestic government, then it follows automatically that at a minimum the citizens comprising the militia must possess personal arms (as opposed to large or crew-served arms like cannon) equal to those of the opposing soldiers. Equal personal arms means, of course, those that include all design features, capabilities, and ergonomics that make a military firearm suitable for modern battle. If this is not the case then there is no point in having a militia, as it will not pose an effective fighting force. For example, the extreme inadequacy of bolt action rifles in combat against semiautomatic arms is well known. But the Founders’ firm insistence upon having an effective militia is absolutely clear from their numerous writings on the subject and from the existence of the Second Amendment itself.

That being so, military-pattern firearms are obviously protected by the Second Amendment. Therefore any restrictive legislation on military-pattern firearms, or on military design elements of other firearms, is completely contrary to the word and spirit of the Second Amendment and is therefore flatly unconstitutional. U.S. v. Miller, 307 U.S. 174 (1939) completely supports this.]

Registration is incompatible with rights

Consider the situation if a state declared that it was perfectly legal to own a Bible - or a copy of the Koran or the Talmud - but that you had to register it in order to keep and use it. Now, what if you did not register it - would you lose the right to own and read it? Of course not. The very idea is absurd. Under the laws of this nation you have the right to worship as you please. As we have seen, that right automatically includes articles necessary or associated with the right, such as books, crucifixes, stars of David, yarmulkes, and so forth.

In exactly the same way, if the state suddenly required registration of printing presses, would the owner of a press lose his right to own or use it by not filling out a registration form? Of course not. The right would still exist. No piece of paper affects it.

In exactly the same way, one does not have to register one's vocal cords, bullhorn, typewriter, pens, pencils, computers, movie cameras, etc, to exercise the right of free speech (or stated in modern terms, the right of uncensored communication). Under the Constitution, if a state issued an edict demanding registration of such things that rule would be invalid as law. Your right to use them would still exist, completely unaffected.

In exactly the same way, prior registration of one's body, home, address, papers, possessions, etc, is not necessary in order to enjoy the Constitutional right to protection from unreasonable searches and seizures of one's person, house, papers, and effects. These various physical things are automatically included, automatically protected by the right.

In exactly the same way, one does not have to register anything or fill out any forms in order to have the Constitutional right to a speedy public trial. It is automatic.

Now consider the situation if you do not register a gun. Is the Second Amendment somehow instantly suspended? Did it vanish? Do you somehow lose the right to keep and bear arms? Certainly not.

If you can lose a “right” by not filling out a piece of paper, then it is not a right. It is a privilege granted by the government, which is a different thing altogether. In the area of government, a privilege is a special permission or immunity granted by a government, it is generally related to the use of some public facility (such as driving on the streets, or using the public library) and it may be suspended or revoked even for minor infractions or misdemeanors.

In sum: Rights do not require government registration, certification, or approval, and are not subject to any form of taxation - otherwise they are not rights, they are privileges granted at the discretion of the government, controlled by the government, and revocable by the government.

Registration is more than an infringement

The Second Amendment reads. “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” The question may be asked, “Is registration of a particular gun truly such a burden that it can be called an infringement of the right to keep and bear arms?”

To begin with, if we were speaking of registering religious items or communications devices, none but socialists would dare ask such a question. Yet the Second Amendment directly follows the amendment concerned with the free exercise of religion and freedom of the press. The Second Amendment holds a place of priority in the Bill of Rights, which is primarily a list of inalienable personal rights.

But to answer the above question -Yes. Registration is absolutely an infringement, on at least three grounds. In fact, we will see that the right versus privilege issue makes registration far more than a mere infringement.

Information

Registration of a firearm gives the government information that can be used (and has been used, and is being used right now) to confiscate that firearm or to pinpoint its owner for weapon seizure, fining, incarceration, or execution. Having the government in possession of this information is directly contrary to the Second Amendment’s intent to ensure that citizens always possess the means to overthrow the government should it become corrupt or tyrannical.

Government control

Allowing the government to seize a citizen’s firearm, or to suspend, revoke, or diminish a citizen’s ability to defend life, family, property, and country for paperwork omissions or errors, for regulatory violations, for minor infractions of the law, for misdemeanors, or arguably for anything less than conviction for a major crime of violence is also directly contrary to the intent of the Second Amendment. This is because virtually all citizens have committed, or will commit, one or more of the listed non-violent errors listed above, whereas the entire point of the Second Amendment is to place this same citizenry’s right to keep and bear arms (and therefore the right of self-defense) out of the government’s grasp.

Right versus privilege

Critically relevant to all our rights, is that any edict that attempts to convert a right into a state-granted privilege by imposing prior requirements-such as registration - before it may be exercised goes far beyond mere “infringement” of that right; it becomes an attempt at outright abrogation of the right.

Therefore the state’s demand to comply with the requirements of such an edict - no matter how physically easy compliance is - imposes not some mere inconvenience on the individual. It imposes the enormous moral, ethical, intellectual, and spiritual burden of denying the existence of the right.

It does not matter if the state demands that one simply tap one’s nose five times in succession in order to be able to keep and bear a particular gun. This would still be a state-mandated prior requirement. Compliance would indicate tacit denial of the validity of the Second Amendment, and denial of the right it protects. Compliance would encompass an implicit acceptance of the right as a mere privilege, which is directly contrary to both the letter and spirit of the Second Amendment.

Applying these concepts to California’s edict

The argument against gun registration of, and restrictions on, military-style firearms may be approached by two logical paths that reach the same conclusions:

1. If the supreme law of the nation protects a personal right to keep and bear arms (which it does) then the failure to comply with a state mandate to fill out some registration form can not revoke this, or any other, right. If the right to keep and bear arms can not be revoked (and it can not be), then the right to keep and bear militia arms, which are the very arms implicitly referred to in the Founders’ writings and in the Second Amendment itself, can not be revoked. If the right to keep and bear militia arms can not be revoked (and it can not be) then we may own and use any military-pattern individually portable firearm, all of which are practical militia arms. If that is the case (and it is), then any restrictive legislation based on militarily useful design elements of such firearms is flatly unconstitutional.

2. If the supreme law of the nation protects the personal right to keep and bear arms (which it does), then the right to keep and bear militia arms, which are the very arms implicitly referred to in the Founders’ writings and in the Second Amendment itself, certainly exists. If that is the case (and it is), then we may own and use any military-pattern individually portable firearm, because all are practical militia arms. If that is the case (and it is), any restrictive legislation based on the militarily useful design elements of such firearms is flatly unconstitutional. If that is the case (and it is), then the failure to comply with a state mandate to fill out some registration form cannot revoke this right.

Again, the same situation prevails with all the personal rights in the Bill of Rights. That is, no state mandate requiring registration - either of oneself or of things directly associated with a right - can be a prerequisite or condition of exercising a right, nor can it affect that right in any way. If it does, then the right has been unconstitutionally declared a state-controlled privilege.

Summary

As we see from the above, no American can be legally compelled to register any militarily useful individual arm. That includes pistols, revolvers, carbines, semi-autos, military-style guns, hunting guns, self-defense guns, pump guns, lever guns, bolt guns, black powder guns, scoped guns, . 50 caliber guns, . 338 caliber guns, .30 caliber guns, .223 caliber guns, etc. All have been used, or are being used, as individual military arms, and therefore are implicitly referred to by the Second Amendment’s militia clause.

Moreover, no American can be legally compelled to register any firearm of common design or function because the Second Amendment does not protect only guns that are useful in military affairs; it protects all guns. The militia reference is clearly meant as one important reason for protecting the right which follows: the right of the people to keep and bear arms. The Second Amendment says simply “arms”, which imposes no quantity or design limits. It says “bear”, which in its narrowest sense would still include all firearm capable of being carried and used by one person.

Therefore, under the supreme law of the land, the right to own one or several of any type of individually portable firearm exists permanently, inherently, automatically, without prior approval or conditions.

1. Indiscriminate weapons - those whose effects are difficult to direct upon, or confine to, a discrete target (such as flame-throwers, fragmentation bombs, chemical weapons and biological weapons, mortars) etc. - are arguably excludable from the full protection of the Second Amendment as posing an unreasonable danger to friend and foe alike.

2. Individually portable machine guns are clearly allowed under the wording of the Second Amendment. However, under certain specific circumstances their employment might arguably be said to encroach into the area of indiscriminate weapons. Therefore, it is arguable that some extra care might be taken in the use of these firearms, but that any restrictions imposing an effective ban on their general ownership or general use would be unconstitutional. As this is a highly specific, highly debatable subject, it will not be, and need not be, delved into here.

Aside from the debatable exceptions of 1. and 2. above, absolutely no individually portable firearm of common design or function may be determined to be an indiscriminate weapon under any circumstances, nor to pose an unreasonable danger. This is because a ban on such a firearm could “logically” be extended to all other firearms of similar design and function (exactly what is occurring with California’s edicts now), which would completely vitiate the Second Amendment. Thus, the 1994 Federal "assault weapon" ban and magazine capacity limit are both completely unconstitutional.

3. The issue of a firearms seller determining the legal status of a potential buyer is separable from the issue of registration, and need not be dealt with here. Suffice it to say that the primary legal principle involved is declaring it a crime to sell or give a firearm to anyone who is legally - that is, legal in accordance with Constitution - prohibited from owning a firearm. Registration need not be, and may not Constitutionally be, part of any firearm sale or transfer.

Registration -- your decision affects all rights

If a military pattern firearm, the firearm most suited to the militia mentioned in the Second Amendment, is not protected by the clear wording of the Second Amendment, then there is no meaning to the Second Amendment. If there is no meaning to the Second Amendment, there is no reason to infer meaning in the rest of the Bill of Rights.

If converting the Second Amendment into a privilege by means of a registration edict is not the maximum “infringement” of that right, then nothing is.

If converting the Second Amendment into a privilege by means of an edict is possible, then it is possible to do so for any other right.

Therefore, regarding the Second Amendment, refusing registration affirms the right to own a militia firearm. It affirms the right to keep and bear all personal arms. It affirms the validity of the rest of the Bill of Rights. It affirms that attempting to convert the Second Amendment into a privilege is the maximum infringement of that right. It rejects a state’s power to convert any right into a privilege. And lastly it affirms the validity of the Constitution, and the rule of law, not men.

Demanding or complying with registration is betrayal

Article VI of the Constitution designates the Constitution as the supreme law of the United States, and specifically states that it prevails over all state constitutions and statutes. Further, Article VI requires all legislative branch, executive branch, and judicial branch officers of the U.S. government and of the state governments to take an oath to obey the Constitution. Some of these officials may hate firearms and the power they give to the citizenry, but that is irrelevant - they must treat the Second Amendment as they would the rest of our Bill of Rights.

All state officials - judges, representatives, law enforcement officials - know these facts, but many are corrupt and ignore them. Their sworn word means nothing to them, nor does the Constitution, nor do the rights of the constituents for whom they work unless it suits their own political agenda. It is against this conscienceless species of human that decent Americans must continually fight, in California and in the rest of the United States.

If you believe you have the right to keep and bear proper militia arms in order to defend yourself, your family, your home, and your country, and if you believe this right is recognized in the Bill of Rights, then you cannot register or turn in any firearm whatsoever. You may rationalize it any way you wish, but if you register a firearm you are implicitly agreeing with the proposition that your right to own that firearm is nonexistent, and that such ownership is dependent upon permission from the government. Registration equals betrayal of yourself, your family, your ancestors, your birthright, your country, and your Constitution. Period.

A personal position

Every new illegal gun control edict issued, and every day that existing illegal gun control edicts continue to be enforced, brings inexorably closer the time when firearms owners will train their guns on the politicians, judges, and other officials who have misled the rest of the public into giving up their sacred and ancient rights. A desire to avoid this terrible tragedy motivates my own actions regarding the Second Amendment and the rights it protects.

For nearly twenty years I have legally owned a militia rifle possessing the characteristics of the socialists' so-called “assault weapon”. Now my right to own this arm, a right that has existed far longer than the two centuries-plus that this nation has existed, is suddenly being challenged by corrupt politicians. But I vehemently reject any infringement of my rights. I will never register this or any other firearm. Nor will I ever turn it in, nor will I ever alter any characteristic or attachment to it. I will never again concern myself with legislation about pistol grips, bayonet lugs, high-capacity magazines, flash suppressors, threaded barrels, folding stocks, pre- or post-ban manufacture, or any other irrelevant detail of my firearms.

I will certainly not do as the NRA Members Councils suggest on their internet site, which is to saw off the pistol grip of one's AR-style rifle to make it “legal”. Understand this: in America it is already legal. I sometimes wonder whether the socialists will issue an edict requiring all firearms to have a pink ribbon tied to the barrel, just to get a belly laugh as the panicked descendants of once-proud American patriots scurry to comply.

California's current governor, attorney general, and legislators who voted for these edicts can undoubtedly find thugs as corrupt and anti-American as themselves to send to my home. I vow not to physically interfere with their illegal activities, because I wish to see this matter in court. I hope that other men and women will join me in this public declaration of civil disobedience, because it would be best to have ten thousand civil disobedience cases in court, not just mine. But I understand why, in this day and age of brutal, ethics-free "public servants", citizens are reluctant to make themselves a target of the state. Fortunately, the citizens of California and other states demanding registration can strike a powerful blow for humanity simply by refusing to comply.

Seize this opportunity

To those of you who whine, complain, and talk, talk, talk about your loss of freedom - I say now is the time to do something. There are few times in an average man's


The Bill of Rights in the National Archives.

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The Second Amendment (Amendment II) to the United States Constitution protects the right of individuals<ref>http://ia600607.us.archive.org/23/items/gov.uscourts.mad.135876/gov.uscourts.mad.135876.31.0.pdf</ref><ref>http://monachuslex.com/?p=143</ref> to keep and bear arms.<ref>

</ref><ref>

</ref><ref>

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</ref> The Supreme Court of the United States has ruled that the right vests in individuals, not merely collective militias, while also ruling that the right is not unlimited and does not prohibit all regulation of either firearms or similar devices.<ref>

</ref> State and local governments are limited to the same extent as the federal government from infringing this right per the incorporation of the Bill of Rights. The Second Amendment was adopted on December 15, 1791, as part of the first ten amendments comprising the Bill of Rights.

The Second Amendment was based partially on the right to keep and bear arms in English common-law and was influenced by the English Bill of Rights of 1689. Sir William Blackstone described this right as an auxiliary right, supporting the natural rights of self-defense, resistance to oppression, and the civic duty to act in concert in defense of the state.<ref>

</ref>

In United States v. Cruikshank (1876), the Supreme Court of the United States ruled that, “The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence” and limited the applicability of the Second Amendment to the federal government.<ref>

</ref> In United States v. Miller (1939), the Supreme Court ruled that the federal government and the states could limit any weapon types not having a “reasonable relationship to the preservation or efficiency of a well regulated militia”.<ref>

</ref><ref name=crs2a>CRS Report for Congress District of Columbia v. Heller: The Supreme Court and the Second Amendment April 11, 2008 Congressional Research Service T.J. Halsted,Legislative Attorney,American Law Division. Order Code RL34446 http://assets.opencrs.com/rpts/RL34446_20080411.pdf.</ref>

In the twenty-first century, the amendment has been subjected to renewed academic inquiry and judicial interest.<ref name=crs2a/> In District of Columbia v. Heller (2008), the Supreme Court handed down a landmark decision, expressly holding the amendment to protect an individual right to possess and carry firearms.<ref name=scotus1>

</ref><ref>

</ref> In McDonald v. Chicago (2010), the Court clarified its earlier decisions that limited the amendment's impact to a restriction on the federal government, expressly holding that the Fourteenth Amendment applies the Second Amendment to state and local governments to the same extent that the Second Amendment applies to the federal government.<ref name=“nytimes.com”>

</ref> Despite these decisions, the debate between the gun control and gun rights movements and related organizations continues.<ref>

</ref>

Text

There are several versions of the text of the Second Amendment, each with capitalization or punctuation differences. Differences exist between the drafted and ratified copies, the signed copies on display, and various published transcriptions.<ref>Davies, pp. 209–16.</ref><ref>The second amendment's capitalization and punctuation are not uniformly reported; another version has four commas, after “militia,” “state,” and “arms.” Since documents were at that time copied by hand, variations in punctuation and capitalization are common, and the copy retained by the first Congress, the copies transmitted by it to the state legislatures, and the ratifications returned by them show wide variations in such details. Letter from Marlene McGuirl, Chief, British-American Law Division, Library of Congress (Oct. 29, 1976).</ref><ref>http://www.nytimes.com/2007/12/16/opinion/16freedman.html?_r=0</ref><ref>http://www.archives.gov/publications/prologue/2012/fall/const-errors.html</ref><ref>

</ref><ref>

</ref><ref>

</ref><ref>

</ref> The importance (or lack thereof) of these differences has been the source of debate regarding the meaning and interpretation of the amendment, particularly regarding the importance of the prefatory clause.

One version was passed by the Congress,<ref>In Part II-A of the Opinion of the Court in District of Columbia v. Heller, the Supreme Court cited this version of the amendment, but another version is found in the copies distributed and then ratified by them.</ref><ref>

</ref><ref>

</ref><ref>

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As passed by the Congress and preserved in the National Archives:<ref>

</ref>

As ratified by the States and authenticated by Thomas Jefferson, then-Secretary of State:<ref>http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=220</ref>

The original hand-written copy of the Bill of Rights, approved by the House and Senate, was prepared by scribe William Lambert and resides in the National Archives.

Pre-Constitution background

Influence of the English Bill of Rights of 1689

The right to bear arms in English history is believed to have been regarded in English law as an auxiliary to the long-established natural right of self-defense, auxiliary to the natural and legally defensible rights to life.<ref>Blackstone's Commentaries Book 1 Ch 1 – “The fifth and last auxiliary right of the subject … is that of having arms for their defence”.</ref> The English Bill of Rights of 1689 emerged from a tempestuous period in English politics during which two issues were major sources of conflict: the authority of the King to govern without the consent of Parliament and the role of Catholics in a country that was becoming ever more Protestant. Ultimately, the Catholic James II was overthrown in the Glorious Revolution, and his successors, the Protestants William III and Mary II, accepted the conditions that were codified in the Bill. One of the issues the Bill resolved was the authority of the King to disarm its subjects, after James II had attempted to disarm many Protestants, and had argued with Parliament over his desire to maintain a standing (or permanent) army.<ref>From the English civil war until the Glorious Revolution, militias occasionally disarmed Catholics, and the King, without Parliament's consent, likewise occasionally disarmed Protestants. Malcolm, “The Role of the Militia,” pp. 139–51.</ref> The bill states that it is acting to restore “ancient rights” trampled upon by James II, though some have argued that the English Bill of Rights created a new right to have arms, which developed out of a duty to have arms.<ref>Joyce Lee Malcolm, To Keep and Bear Arms.</ref> In District of Columbia v. Heller (2008), the Supreme Court did not accept this view, remarking that the English right at the time of the passing of the English Bill of Rights was “clearly an individual right, having nothing whatsoever to do with service in the militia” and that it was a right not to be disarmed by the Crown and was not the granting of a new right to have arms.<ref>“They accordingly obtained an assurance from William and Mary, in the…(Bill of Rights), that Protestants would never be disarmed:..This right has long been understood to be the predecessor to our Second Amendment…. It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament.” Opinion of the Court in ''Heller''</ref>

The text of the English Bill of Rights of 1689 includes language protecting the right of Protestants against disarmament by the Crown. This document states: “That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.”<ref name=“c21WillMarSess2”>

</ref> It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament.<ref>Barnett, Law, p. 172.</ref> Nevertheless, the English Bill of Rights remains an important constitutional document, more for enumerating the rights of Parliament over the monarchy than for its clause concerning a right to have arms.

The statement in the English Bill of Rights concerning the right to bear arms is often quoted only in the passage where it is written as above and not in its full context. In its full context it is clear that the bill was asserting the right of Protestant citizens not to be disarmed by the King without the consent of Parliament and was merely restoring rights to Protestants that the previous King briefly and unlawfully had removed. In its full context it reads:

<blockquote>Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome (list of grievances including) … by causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law, (Recital regarding the change of monarch) … thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors in like Case have usually done) for the Vindicating and Asserting their ancient Rights and Liberties, Declare (list of rights including) … That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.<ref name=“c21WillMarSess2”/></blockquote>

The historical link between the English Bill of Rights and the Second Amendment, which both codify an existing right and do not create a new one, has been acknowledged by the U.S. Supreme Court.<ref>“This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we (the United States Supreme Court) said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed ..”. Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31–53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103–106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” 1 W. & M., c. 2, §7, in 3 Eng. Stat. at Large 441 (1689). This right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights and What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle).” From the Opinion of the Court in District of Coöimbia versus Heller http://www.supremecourt.gov/opinions/07pdf/07-290.pdf</ref><ref>Justice Antonin Scalia, wrote that “the right of the people to keep and bear Arms, shall not be infringed” was a just a controlling one and referred to it as a pre-existing right of individuals to possess and carry personal weapons for self-defense and intrinsically for defense against tyranny. As with the English law “like most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” ''District of Columbia v Heller''</ref>

The English Bill of Rights includes the proviso that arms must be as “allowed by law.” This has been the case before and after the passage of the Bill. While it did not override earlier restrictions on the ownership of guns for hunting, it was written to preserve the hunting rights of the landed aristocracy and is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments.<ref>“Where a later enactment does not expressly repeal an earlier enactment which it has power to override, but the provisions of the later enactment are contrary to those of the earlier, the latter by implication repeals the earlier.” R v. Burke, [1998] EWHC Admin 913; “[T]he Bill of Rights…was declaratory of the common law. It contained in it its own words of limitation, namely that the right to have arms for self-defence is limited by the words 'and as allowed by Law'. The law is a changing thing. Parliament by statute can repeal the common law…Where the Bill of Rights says that 'the Subjects may have arms for their defence suitable for their condition and as allowed by law', 'and as allowed by law' means 'and as allowed by law for the time being'[.]” R v. Burke, [1999] EWCA Civ 923.</ref> There is some difference of opinion as to how revolutionary the events of 1688–89 actually were, and several commentators make the point that the provisions of the English Bill of Rights did not represent new laws, but rather stated existing rights. Mark Thompson wrote that, apart from determining the succession, the English Bill of Rights did “little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already posessed

.”<ref>

qtd. in Maer and Gay, p. 4.</ref> Before and after the English Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm.<ref name=“isbn0-674-89307-7”>Malcolm, To Keep and Bear Arms, p. 51.</ref> In 1765, William Blackstone wrote the Commentaries on the Laws of England describing the right to have arms in England during the 18th century as a natural right of the subject that was “also declared” in the English Bill of Rights.<ref name=“Bodenahamer”>Ely and Bodenhamer, pp. 89–91.</ref><ref name=“HeymanChigagoKent”>Heyman, pp. 253–9. “Finally, we should note that (contrary to Kates's assertion), Blackstone nowhere suggests that the right to arms derives from “the common law.” Instead, this is a right that is secured by “the constitution,” and in particular by the Bill of Rights.”</ref>

</ref>}}

Although there is little doubt that the writers of the Second Amendment were heavily influenced by the English Bill of Rights, it is a matter of interpretation as to whether they were intent on preserving the power to regulate arms to the states over the federal government (as the English Parliament had reserved for itself against the monarch) or whether it was intent on creating a new right akin to the right of others written into the Constitution (as the Supreme Court decided in Heller). Some in the United States have preferred the “rights” argument arguing that the English Bill of Rights had granted a right. The need to have arms for self-defence was not really in question. Peoples all around the world since time immemorial had armed themselves for the protection of themselves and others, and as organized nations began to appear these arrangements had been extended to the protection of the state.<ref>e.g., King Henry II's Assize of Arms and the Statute of Winchester of 1285. See “The history of policing in the West, Collective responsibility in early Anglo-Saxon times”, Encyclopædia Britannica online.</ref> Without a regular army and police force (which in England was not established until 1829), it had been the duty of certain men to keep watch and ward at night and to confront and capture suspicious persons. Every subject had an obligation to protect the king's peace and assist in the suppression of riots.<ref name=“Levy1999”>Levy, pp. 136–7.</ref>

Experience in America prior to the U.S. Constitution

.<ref name=“Saul_Cornell_two_models”>Cornell, Gun Control, p. 2.</ref>]] Early English settlers in America viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes (in no particular order):<ref name=“papers.ssrn.com”>Hardy, p. 1237. “Early Americans wrote of the right in light of three considerations: (1) as auxiliary to a natural right of self-defense; (2) as enabling an armed people to deter undemocratic government; and (3) as enabling the people to organize a militia system.”</ref><ref>Malcolm, “That Every Man Be Armed,” pp. 452, 466. “The Second Amendment reflects traditional English attitudes toward these three distinct, but intertwined, issues: the right of the individual to protect his life, the challenge to government of an armed citizenry, and the preference for a militia over a standing army. The framers' attempt to address all three in a single declarative sentence has contributed mightily to the subsequent confusion over the proper interpretation of the Second Amendment.”</ref><ref name=“isbn0-300-08901-5”>Levy, p. 136.</ref><ref name=“Merkel62withquote”>Merkel and Uviller, pp. 62, 179 ff, 183, 188 ff, 306. “[T]he right to bear arms was articulated as a civic right inextricably linked to the civic obligation to bear arms for the public defense.”</ref><ref name=“isbn1-57607-347-5pg155”>Spitzer, pp. 155–9.</ref><ref name=“isbn0-253-21040-2”>Dulaney, p. 2.</ref><ref name=“Bogus2001”>

</ref><ref name=“isbn0-8223-3017-2pg189”>Merkel and Uviller, pp. 62, 179 ff, 183, 188 ff, 306.</ref>

  • enabling the people to organize a militia system.
  • participating in law enforcement;
  • deterring tyrannical government;<ref name=“Dunlap_Revolt”>

    </ref>

  • repelling invasion;
  • suppressing insurrection, allegedly including slave revolts;<ref name=“Bogus1998”>

    </ref><ref name=“Hartmann2013”>

    </ref><ref name=“Slave_Insurrection_motherjones”>

    </ref>

  • facilitating a natural right of self-defense.

Which of these considerations were thought of as most important and ultimately found expression in the Second Amendment is disputed. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776 asserted that, “the people have a right to bear arms for the defence of themselves and the state”.<ref>

</ref>

During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, including many who were loyal to British imperial rule. As defiance and opposition to British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists, known as Patriots, who favored independence from British rule. As a result, these Patriots established independent colonial legislatures to create their own militias that excluded the Loyalists and then sought to stock independent armories for their militias. In response to this arms build up, the British Parliament established an embargo on firearms, parts and ammunition on the American colonies.<ref name=“isbn1-55553-486-4pg27”>

</ref>

British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, Blackstone's summary of the Declaration of Rights, their own militia laws and common law rights to self-defense.<ref name=HalbrookHardy>

qtd. in Halbrook, A Right to Bear Arms, p. 7.</ref> While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense.<ref name=HalbrookHardy/> Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars' interpretation of Blackstone.<ref>Charles, “Arms for Their Defence?”, p. 4.</ref>

The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 Boston objecting to the British army suppression of colonial opposition to the Townshend Acts:

The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with regular French army and naval forces and various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist Militia and Hessian mercenaries. Following the Revolution, the United States was governed by the Articles of Confederation. Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the standing army was reduced to as few as 80 men.<ref name=“isbn0-472-03370-0pg91-92”>Anderson and Horwitz, pp. 91–2.</ref> They considered it to be bad that there was no effective federal military crackdown to an armed tax rebellion in western Massachusetts known as Shays' Rebellion.<ref>Vest, Rose. "Shay's Rebellion", Home of Heroes.</ref> Anti-federalists on the other hand took the side of limited government and sympathized with the rebels, many of whom were former Revolutionary War soldiers. Subsequently, the Constitutional Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.<ref name=“isbn1-4051-1674-9pg398”>Pole and Greene, p. 386.</ref><ref name=“isbn1-85109-669-8”>Vile, p. 30.</ref> Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power.<ref name=“isbn0-8223-3017-2pg79”>Merkel and Uviller, p. 79.</ref>

Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that James Madison “did not invent the right to keep and bear arms when he drafted the Second Amendment; the right was pre-existing at both common law and in the early state constitutions.”<ref>McAffee and Quinlan, p. 781.</ref> In contrast, historian Jack Rakove suggests that Madison's intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed.<ref name=“Rakove”>Rakove, p. ?

</ref>

One aspect of the gun control debate is the conflict between gun control laws and the right to rebel against unjust governments. Blackstone in his Commentaries alluded to this right to rebel as the natural right of resistance and self preservation, to be used only as a last resort, exercisable when “the sanctions of society and laws are found insufficient to restrain the violence of oppression”.<ref>William Blackstone, Commentaries on the Laws of England, Book 1, Chapter 1 “the fifth and last auxiliary right…when the sanctions of society and laws are found insufficient to restrain the violence of oppression”.</ref> Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation,<ref name=“Millis”>Millis, p. 49. “The founders sought to balance military, as they did political, power, between people, states, and nation[.]”</ref> as Alexander Hamilton explained in 1788:

Some scholars have said that it is wrong to read a right of armed insurrection in the Second Amendment because clearly the founding fathers sought to place trust in the power of the ordered liberty of democratic government versus the anarchy of insurrectionists.<ref name=“CarlBogus law or guns”>

</ref><ref>Henigan, p. ?. “[A] generalized constitutional right of all citizens to engage in armed insurrection against their government…would threaten the rule of law itself.”

</ref> Other scholars, such as Glenn Reynolds, contend that the framers did believe in an individual right to armed insurrection. The latter scholars cite examples, such as the Declaration of Independence (describing in 1776 “the Right of the People to…institute new Government”) and the Constitution of New Hampshire (stating in 1784 that “nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind”).<ref>Reynolds, p. ?

</ref>

There was an ongoing debate in the 1780s about “the people” fighting governmental tyranny (as described by Anti-Federalists); or the risk of mob rule of “the people” (as described by the Federalists) related to the ongoing revolution in France.<ref>

</ref> A widespread fear, during the debates on ratifying the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens,<ref>Cooke, p. 100. “This is another protection against a possible abuse by Congress. The right protected is really the right of a state to maintain an armed militia, or national guard, as we call it now. In the eighteenth century people feared that Congress might, by passing a law, prohibit the states from arming their citizens. Then having all the armed strength at its command, the national government could overwhelm the states. Such a circumstance has never happened, but this amendment would prevent it. The Second Amendment does not give anybody or everybody the right to possess and use firearms. The states may very properly prescribe regulations and permits governing the use of guns within their borders.”</ref> or prohibiting citizens from arming themselves.<ref name=“HalbrookHardy”/> Though it has been argued that the states lost the power to arm their citizens when the power to arm the militia was transferred from the states to the federal government by Article I, Section 8 of the Constitution, the individual right to arm was retained and strengthened by the Militia Acts of 1792 and the similar act of 1795.<ref>US Constitution Article 1 Section 8 To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.</ref><ref>

The national government has an exclusive right to provide for arming, organizing, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States. The state governments have the power of appointing the officers, and of training the militia, according to the discipline prescribed by Congress, if they should think proper to prescribe any. Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army.</ref>

Drafting and adoption of the Constitution

qtd. in Cottrol, p. 283.</ref> while Alexander Hamilton (right) wrote in Federalist No. 29 that “little more can be reasonably aimed at, with respect to the people at large, than to have them properly armed…”<ref name=“FederalistPapers29”>''The Federalist Papers'' No. 29 (Alexander Hamilton) (concerning the militia).</ref>|footer_align=left|image1=Patrick henry.JPG|width1=123|image2=Alexander_Hamilton_portrait_by_John_Trumbull_1806.jpg|width2=126}} In March 1785, delegates from Virginia and Maryland assembled at the Mount Vernon Conference to fashion a remedy to the inefficiencies of the Articles of Confederation. The following year, at a meeting in Annapolis, Maryland, 12 delegates from five states (New Jersey, New York, Pennsylvania, Delaware, and Virginia) met and drew up a list of problems with the current government model. At its conclusion, the delegates scheduled a follow-up meeting in Philadelphia, Pennsylvania for May 1787 to present solutions to these problems, such as the absence of:<ref>Vile, p. 19.</ref><ref name=“Schmidt39”>Schmidt et al., p. 39.</ref>

  • interstate arbitration processes to handle quarrels between states;
  • sufficiently trained and armed intrastate security forces to suppress insurrection;
  • a national militia to repel foreign invaders.

It quickly became apparent that the solution to all three of these problems required shifting control of the states' militias to the federal congress and giving that congress the power to raise a standing army.<ref name=“isbn0-300-09562-7”>Williams, pp. 41–4.</ref> Article 1, Section 8 of the Constitution codified these changes by allowing the Congress to provide for the common defense and general welfare of the United States by doing the following:<ref>

</ref>

  • raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
  • provide and maintain a navy;
  • make rules for the government and regulation of the land and naval forces;
  • provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
  • provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.

Some representatives mistrusted proposals to enlarge federal powers, because they were concerned about the inherent risks of centralizing power. Federalists, including James Madison, initially argued that a bill of rights was unnecessary, sufficiently confident that the federal government could never raise a standing army powerful enough to overcome a militia.<ref name=“FederalistPapers46”>''The Federalist Papers'' No. 46 (James Madison) (concerning the influence of state and federal governments).</ref> Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.<ref>Webster, Noah. "An Examination of the Leading Principles of the Federal Constitution" (October 10, 1787).</ref><ref>Young, pp. 38–41. “A Citizen of America (Noah Webster) October 10, 1787 Pamphlet: An Examination into the leading principles of the Federal Constitution.”</ref> Anti-federalists, on the other hand, advocated amending the Constitution with clearly defined and enumerated rights providing more explicit constraints on the new government. Many Anti-federalists feared the new federal government would choose to disarm state militias. Federalists countered that in listing only certain rights, unlisted rights might lose protection. The Federalists realized there was insufficient support to ratify the Constitution without a bill of rights and so they promised to support amending the Constitution to add a bill of rights following the Constitution's adoption. This compromise persuaded enough Anti-federalists to vote for the Constitution, allowing for ratification.<ref>Foner and Garraty, p. 914. “The Massachusetts compromise determined the fate of the Constitution, as it permitted delegates with doubts to vote for it in the hope that it would be amended.”</ref> The Constitution was declared ratified on June 21, 1788, when nine of the original thirteen states had ratified it. The remaining four states later followed suit, although the last two states, North Carolina and Rhode Island, ratified only after Congress had passed the Bill of Rights and sent it to the states for ratification.<ref>Adamson, p. 63.</ref> James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June 8, 1789, and was adopted on December 15, 1791.

Ratification debates

The debate surrounding the Constitution's ratification is of practical importance, particularly to adherents of originalist and strict constructionist legal theories. In the context of such legal theories and elsewhere, it is important to understand the language of the Constitution in terms of what that language meant to the people who wrote and ratified the Constitution.<ref>See Theories of Constitutional Interpretation, maintained by Doug Linder, University of Missouri-Kansas City Law School. Retrieved 2011-12-11. (Author cites Robert Bork: “If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended.”)</ref>

The Second Amendment was relatively uncontroversial at the time of its ratification.<ref>Garry Wills, A Necessary Evil: A History of American Distrust of Government, Simon and Schuster, 1999, page 252. (“Until recently, the Second Amendment was a little-visited area of the Constitution. A two thousand-page commentary on the Constitution put out by the Library of Congress in 1973 has copious annotation for most clauses, but less than a page and a half for the Second Amendment.”)</ref> Robert Whitehill, a delegate from Pennsylvania, sought to clarify the draft Constitution with a bill of rights explicitly granting individuals the right to hunt on their own land in season,<ref>Garry Wills, A Necessary Evil: A History of American Distrust of Government, Simon and Schuster, 1999, pages 253–254. (“Whitehill deals with guns in three of his fifteen headings. Article 8 begins: 'The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times…' article 7: 'That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purposes of killing game…'”)</ref> though Whitehill's language was never debated.<ref>Garry Wills, A Necessary Evil: A History of American Distrust of Government, Simon and Schuster, 1999, page 253. (“The items on the [Whitehill's] list were never discussed in the convention, which when on to approve the Constitution.”)</ref> Rather, the Constitutional delegates altered the language of the Second Amendment several times to emphasize the military context of the amendment<ref>Garry Wills, A Necessary Evil: A History of American Distrust of Government, Simon and Schuster, 1999, page 258. (“The context of the amendment as he [Madison] originally drafted it is clearly military: 'The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.' That last clause equates 'bear arms' and 'military service.' Quakers and other contentious objectors are exempted from bearing arms, which does not prohibit them from hunting rabbits with their privately owned muskets. The Congress actually strengthened the military context, by moving Madison's explanatory second clause into the first place, as a preamble stating the scope of the law (the regular function of a 'whereas' introduction): 'A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.'”)</ref> and the role of the militia as a force to defend national sovereignty,<ref>Alexander Hamilton, Federalist #29. (“If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security”)</ref> quell insurrection,<ref>Garry Wills, A Necessary Evil: A History of American Distrust of Government, Simon and Schuster, 1999, pages 114–115. (“The militia's actual use, just as in America, was as a manpower pool sporadically activated, often at the discretion of country squires, for purposes of internal police and the suppression of dissent.”)</ref><ref>Alexander Hamilton, Federalist #25. (“The conduct of Massachusetts affords a lesson on the same subject, though on different ground. That State (without waiting for the sanction of Congress, as the articles of the Confederation require) was compelled to raise troops to quell a domestic insurrection, and still keeps a corps in pay to prevent a revival of the spirit of revolt.”)</ref> and protect against tyranny.<ref>Tench Coxe, “Remarks On The First Part Of The Amendments To The Federal Constitution,” 1789. (“As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.”)</ref>

There was substantial opposition to the new Constitution, because it moved the power to arm the state militias from the states to the federal government. This created a fear that the federal government, by neglecting the upkeep of the militia, could have overwhelming military force at its disposal through its power to maintain a standing army and navy, leading to a confrontation with the states, encroaching on the states' reserved powers and even engaging in a military takeover. Article VI of the Articles of Confederation states:

:No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the united States in congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the united States, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.<ref>

</ref><ref>

</ref>

In contrast, Article I, Section 8, Clause 16 of the U.S. Constitution states:

:To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.<ref>

</ref>

A foundation of American political thought during the Revolutionary period was the well justified concern about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is “a chimerical idea to suppose that a country like this could ever be enslaved . . . Is it possible . . . that an army could be raised for the purpose of enslaving themselves or their brethren? or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?”<ref>2 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 97 (2d ed. 1863)</ref> Noah Webster similarly argued:

:Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.<ref name=“emerson”/><ref>Noah Webster, An Examination into the Leading Principles of the Federal Constitution (1787), Reprinted in Pamphlets on the Constitution of the United States, Published During Its Discussion by the People, 1787–1788, at 56 (Paul L. Ford, ed. 1971) (1888)</ref>

George Mason argued the importance of the militia and right to bear arms by reminding his compatriots of England's efforts “to disarm the people; that it was the best and most effectual way to enslave them . . . by totally disusing and neglecting the militia.” He also clarified that under prevailing practice the militia included all people, rich and poor. “Who are the militia? They consist now of the whole people, except a few public officers.” Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.<ref name=“emerson”/><ref>3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 425 (3d Ed. 1937)</ref>

The framers thought the personal right to bear arms to be a paramount right by which other rights could be protected. Therefore, writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included “the right to keep and bear arms” in a list of basic “human rights”, which he proposed to be added to the Constitution.<ref name=“emerson”/><ref>James Monroe Papers, New York Public Library (Miscellaneous Papers of James Monroe)</ref>

Patrick Henry argued in the Virginia ratification convention on June 5, 1788, for the dual rights to arms and resistance to oppression:

While both Monroe and Adams supported the Constitution being ratified, its most influential framer was James Madison. In Federalist No. 46, he confidently contrasted the federal government of the United States to the European kingdoms, which he contemptuously described as “afraid to trust the people with arms.” He assured his fellow citizens that they need never fear their government because of “the advantage of being armed….”<ref name=“emerson”/><ref>The Federalist No. 46, at 371 (James Madison) (John. C. Hamilton Ed., 1864)</ref>

By January 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several specific amendments were proposed, but were not adopted at the time the Constitution was ratified. For example, the Pennsylvania convention debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to amendments to assure ratification. Samuel Adams proposed that the Constitution:

:Be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defence of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of their grievances: or to subject the people to unreasonable searches and seizures.<ref name=“emerson”>

</ref>

Conflict and compromise in Congress produce the Bill of Rights

James Madison's initial proposal for a bill of rights was brought to the floor of the House of Representatives on June 8, 1789, during the first session of Congress. The initial proposed passage relating to arms was:

On July 21, Madison again raised the issue of his bill and proposed a select committee be created to report on it. The House voted in favor of Madison's motion,<ref>''Journal of the House of Representatives of the United States'', Vol. 1: p. 64.</ref> and the Bill of Rights entered committee for review. The committee returned to the House a reworded version of the Second Amendment on July 28.<ref>''Annals of Congress'', House of Representatives, 1st Congress, 1st Session: p. 669.</ref> On August 17, that version was read into the Journal:

In late August 1789, the House debated and modified the Second Amendment. These debates revolved primarily around risk of “mal-administration of the government” using the “religiously scrupulous” clause to destroy the militia as Great Britain had attempted to destroy the militia at the commencement of the American Revolution. These concerns were addressed by modifying the final clause, and on August 24, the House sent the following version to the Senate:

The next day, August 25, the Senate received the amendment from the House and entered it into the Senate Journal. However, the Senate scribe added a comma before “shall not be infringed” and changed the semicolon separating that phrase from the religious exemption portion to a comma:

By this time, the proposed right to keep and bear arms was in a separate amendment, instead of being in a single amendment together with other proposed rights such as the due process right. As a Representative explained, this change allowed each amendment to “be passed upon distinctly by the States.”<ref>Letter from Roger Sherman to Simeon Baldwin (Aug. 22, 1789) qtd. in Bickford, et al., p. 16 See also letter from James Madison to Alexander White (Aug. 24, 1789) qtd. in Madison, Writings, pp. 418–9.</ref> On September 4, the Senate voted to change the language of the Second Amendment by removing the definition of militia, and striking the conscientious objector clause:

The Senate returned to this amendment for a final time on September 9. A proposal to insert the words “for the common defence” next to the words “bear arms” was defeated. An extraneous comma added on August 25 was also removed.<ref>''Journal of the Senate of the United States of America'', Vol. 1: p. 77.</ref> The Senate then slightly modified the language and voted to return the Bill of Rights to the House. The final version passed by the Senate was:

The House voted on September 21, 1789 to accept the changes made by the Senate, but the amendment as finally entered into the House journal contained the additional words “necessary to”:

On December 15, 1791, the Bill of Rights (the first ten amendments to the Constitution) was adopted, having been ratified by three-fourths of the states.

Militia in the decades following ratification

During the first two decades following the ratification of the Second Amendment, public opposition to standing armies, among Anti-Federalists and Federalists alike, persisted and manifested itself locally as a general reluctance to create a professional armed police force, instead relying on county sheriffs, constables and night watchmen to enforce local ordinances.<ref name=“isbn1-55553-486-4pg53”/> Though sometimes compensated, often these positions were unpaid—held as a matter of civic duty. In these early decades, law enforcement officers were rarely armed with firearms, using billy clubs as their sole defensive weapons.<ref name=“isbn1-55553-486-4pg53”/> In serious emergencies, a posse comitatus, militia company, or group of vigilantes assumed law enforcement duties; these individuals were more likely than the local sheriff to be armed with firearms.<ref name=“isbn1-55553-486-4pg53”>DeConde, p. 53.</ref>

On May 8, 1792, Congress passed “[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States” requiring:

The act also gave specific instructions to domestic weapon manufacturers “that from and after five years from the passing of this act, muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound.”<ref name=“1Stat272”>1 Stat. 272.</ref> In practice, private acquisition and maintenance of rifles and muskets meeting specifications and readily available for militia duty proved problematic; estimates of compliance ranged from 10 to 65 percent.<ref name=“isbn0-8223-3017-2 pg294”>Merkel and Uviller, pp. 293–4.</ref> Compliance with the enrollment provisions was also poor. In addition to the exemptions granted by the law for custom-house officers and their clerks, post-officers and stage drivers employed in the care and conveyance of U.S. mail, ferrymen, export inspectors, pilots, merchant mariners and those deployed at sea in active service; state legislatures granted numerous exemptions under Section 2 of the Act, including exemptions for: clergy, conscientious objectors, teachers, students, and jurors. And though a number of able-bodied white men remained available for service, many simply did not show up for militia duty. Penalties for failure to appear were enforced sporadically and selectively.<ref name=“isbn0-8223-3017-2 pg120”/> None are mentioned in the legislation.<ref name=“1Stat272”/>

was made in the USA and used in the War of 1812]]The first test of the militia system occurred in July 1794, when a group of disaffected Pennsylvania farmers rebelled against federal tax collectors whom they viewed as illegitimate tools of tyrannical power.<ref name=“isbn0-87023-295-9”>Szatmary, p. 107.</ref> Attempts by the four adjoining states to raise a militia for nationalization to suppress the insurrection proved inadequate. When officials resorted to drafting men, they faced bitter resistance. Forthcoming soldiers consisted primarily of draftees or paid substitutes as well as poor enlistees lured by enlistment bonuses. The officers, however, were of a higher quality, responding out of a sense of civic duty and patriotism, and generally critical of the rank and file.<ref name=“isbn1-55553-486-4pg40”>DeConde, pp. 40–3.</ref> Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.<ref name=“isbn1-55553-486-4pg40”/> In October, President George Washington and General Harry Lee marched on the 7,000 rebels who conceded without fighting. The episode provoked criticism of the citizen militia and inspired calls for a universal militia. Secretary of War Henry Knox and President John Adams had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production.<ref name=“isbn1-55553-486-4pg40”/> Congress did subsequently pass “[a]n act for the erecting and repairing of Arsenals and Magazines” on April 2, 1794, two months prior to the insurrection.<ref>1 Stat. 351.</ref> Nevertheless, the militia continued to deteriorate and twenty years later, the militia's poor condition contributed to several losses in the War of 1812, including the sacking of Washington, D.C., and the burning of the White House in 1814.<ref name=“isbn0-8223-3017-2 pg120”>Merkel and Uviller, p. 12.</ref>

Scholarly commentary

Early commentary

Tench Coxe

In 1792, Tench Coxe made the following point in a commentary on the Second Amendment:<ref>“Remarks on the First Part of the Amendments to the Federal Constitution,” Federal Gazette, June 18, 1792, at 2, col. 1</ref>

Tucker/Blackstone

The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker. He annotated a five-volume edition of Sir William Blackstone's Commentaries on the Laws of England, a critical legal reference for early American attorneys published in 1803.<ref name=“tucker”>Tucker, p. 490 and

</ref> Tucker wrote:

</ref>}}

In footnotes 40 and 41 of the Commentaries, Tucker stated that the right to bear arms under the Second Amendment was not subject to the restrictions that were part of English law: “The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government” and “whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England.” Blackstone himself also commented on English game laws, Vol. II, p.&nbsp;412, “that the prevention of popular insurrections and resistance to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws.”<ref name=“tucker”/> Blackstone discussed the right of self-defense in a separate section of his treatise on the common law of crimes. Tucker's annotations for that latter section did not mention the Second Amendment but cited the standard works of English jurists such as Hawkins.<ref>For two radically different views of Blackstone on the Second Amendment, see Heyman, Chicago-Kent, and Volokh, Senate Testimony.</ref>

Further, Tucker criticized the English Bill of Rights for limiting gun ownership to the very wealthy, leaving the populace effectively disarmed, and expressed the hope that Americans “never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.”<ref name=“tucker”/>

William Rawle

Tucker's commentary was soon followed, in 1825, by that of William Rawle in his landmark text, A View of the Constitution of the United States of America. Like Tucker, Rawle condemned England's “arbitrary code for the preservation of game,” portraying that country as one that “boasts so much of its freedom,” yet provides a right to “protestant subjects only” that it “cautiously describ[es] to be that of bearing arms for their defence” and reserves for “[a] very small proportion of the people[.]”<ref name=“Rawle126”>Rawle, p. 126.</ref> In contrast, Rawle characterizes the second clause of the Second Amendment, which he calls the corollary clause, as a general prohibition against such capricious abuse of government power, declaring bluntly:

Speaking of the Second Amendment generally, Rawle said:<ref name=“Rawle1825” />

</ref><ref>http://www.portagepub.com/dl/causouth/rawle.pdf?</ref>}}

Rawle, long before the concept of incorporation was formally recognized by the courts, or Congress drafted the Fourteenth Amendment, contended that citizens could appeal to the Second Amendment should either the state or federal government attempt to disarm them. He did warn, however, that “this right [to bear arms] ought not…be abused to the disturbance of the public peace” and observed, paraphrasing Coke, that “[a]n assemblage of persons with arms, for unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace.”<ref name=“Rawle126”/>

Joseph Story

Joseph Story articulated in his influential Commentaries on the Constitution<ref>A Familiar Exposition of the Constitution of the United States: Containing a Brief Commentary on Every Clause, Explaining the True Nature, Reasons, and Objects Thereof : Designed for the Use of School Libraries and General Readers : with an Appendix, Containing Important Public Documents, Illustrative of the Constitution. 1833</ref> the orthodox view of the Second Amendment, which he viewed as the amendment's clear meaning:

</ref><ref name=Story/>}}

Story describes a militia as the “natural defence of a free country,” both against foreign foes, domestic revolts and usurpation by rulers. The book regards the militia as a “moral check” against both usurpation and the arbitrary use of power, while expressing distress at the growing indifference of the American people to maintaining such an organized militia, which could lead to the undermining of the protection of the Second Amendment.<ref name=Story>

</ref>

Lysander Spooner

Abolitionist Lysander Spooner, commenting on bills of rights, stated that the object of all bills of rights is to assert the rights of individuals against the government and that the Second Amendment right to keep and bear arms was in support of the right to resist government oppression, as the only security against the tyranny of government lies in forcible resistance to injustice, for injustice will certainly be executed, unless forcibly resisted.<ref>Spooner, pp. 17–8.</ref> Spooner's theory provided the intellectual foundation for John Brown and other radical abolitionists who believed that arming slaves was not only morally justified, but entirely consistent with the Second Amendment.<ref>Renehan, pp. 172–4.</ref> An express connection between this right and the Second Amendment was drawn by Lysander Spooner who commented that a “right of resistance” is protected by both the right to trial by jury and the Second Amendment.<ref>Spooner, p. 17.</ref>

The congressional debate on the proposed Fourteenth Amendment concentrated on what the Southern States were doing to harm the newly freed slaves, including disarming the former slaves.<ref>Cramer, p. ?

</ref>

Timothy Farrar

In 1867, Judge Timothy Farrar published his Manual of the Constitution of the United States of America, which was written when the Fourteenth Amendment was “in the process of adoption by the State legislatures.”:<ref name=“Halbrook1998”/><ref>

</ref>

Judge Thomas Cooley

Judge Thomas Cooley, perhaps the most widely read constitutional scholar of the nineteenth century, wrote extensively about this amendment,<ref>Thomas M. Cooley, The Abnegation of Self-Government, 12 Princeton Review 213–14 (1883): “The right of the people to bear arms in their own defence, and to form and drill military organizations in defence of the State,… is reserved by the people as a possible and necessary resort for the protection of self-government against usurpation, and against any attempt on the part of those who may for the time be in possession of State authority or resources to set aside the constitution and substitute their own rule for that of the people. Should the contingency ever arise when it would be necessary for the people to make use of the arms in their hands for the protection of constitutional liberty, the proceeding, so far from being revolutionary, would be in strict accord with popular right and duty.”</ref><ref name=“Cooley1871”>

</ref> and he explained in 1880 how the Second Amendment protected the “right of the people”:<ref name=“Cooley1880”>

</ref> <blockquote>It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose.</blockquote>

Late 20th century commentary

In the latter half of the 20th century there was considerable debate over whether the Second Amendment protected an individual right or a collective right.<ref name=“rkba1982”>Right to Keep and Bear Arms, U.S. Senate. 2001 Paladin Press. ISBN 1-58160-254-5.</ref> The debate centered on whether the prefatory clause (“A well regulated militia being necessary to the security of a free State”) declared the amendment’s only purpose or merely announced a purpose to introduce the operative clause (“the right of the People to keep and bear arms shall not be infringed”).

Three basic competing models were offered to interpret the Second Amendment:<ref>

</ref>

The first, known as the “states' rights” or “collective right” model, holds that the Second Amendment does not apply to individuals; rather, it recognizes the right of each state to arm its militia. <blockquote>Judicial reluctance to consider seriously whether the Fourteenth Amendment protects the right to keep and bear arms from state infringement perhaps reflects a tendency to view the Second Amendment, with its apparent guarantee of gun ownership, as embarrassing and politically incorrect. Under the twentieth-century “State’s rights” view, “the people” have no right to keep or bear arms, but the states have a collective right to have the National Guard.<ref name=“Halbrook1998”>

</ref></blockquote>

The second, known as the “sophisticated collective right model”, holds that the Second Amendment recognizes some limited individual right. However, this individual right could only be exercised by actively participating members of a functioning, organized state militia.

<blockquote>Indeed, the fact that the collective right theory was once so confidently advanced by gun control enthusiasts is on its way down the collective memory hole as though it had never been asserted. With its demise, the intellectual debate over the original meaning of the second Amendment has turned in a different direction. Although now conceding that the right to keep and bear arms indeed belongs to individuals rather than to states, almost without missing a beat, gun control enthusiasts now claim with equal assurance that the individual right to bear arms was somehow “conditioned” in its exercise on participation in an organized militia.<ref name=“Barnett2004”>

</ref></blockquote>

The third, known as the “standard model”, is that the Second Amendment recognized the personal right of individuals to keep and bear arms. <blockquote>However, the weight of serious scholarship supports the historical intent of the Second Amendment to protect individual rights and to deter governmental tyranny. From the Federalist Papers to explanations when the Bill of Rights was introduced, it is clear that the purpose of the Second Amendment was to protect individual rights.<ref name=“Halbrook1998”/></blockquote>

Under both of the collective right models, the opening phrase was considered essential as a pre-condition for the main clause.<ref name=“isbn0-8223-3031-8”>Merkel and Uviller, p. 150. “The linguistically correct reading of this unique construction is as though it said: 'Congress shall not limit the right of the people (that is, the potential members of the state militia) to acquire and keep the sort of arms appropriate to their military duty, so long as the following statement remains true: “an armed, trained, and controlled militia is the best – if not the only – way to protect the state government and the liberties of its people against uprisings from within and incursions or oppression from without.'”</ref> These interpretations held that this was a grammar structure that was common during that era<ref>Winterer, pp. 1–21</ref> and that this grammar dictated that the Second Amendment protected a collective right to firearms to the extent necessary for militia duty.<ref>

</ref>

Under the standard model, the opening phrase is believed to be prefatory or amplifying to the operative clause. The opening phrase was meant as a non-exclusive example—one of many reasons for the amendment.<ref name=“Bodenahamer”/> This interpretation is consistent with the position that the Second Amendment protects a modified individual right.<ref name=“isbn1-55786-594-9”>Frey and Wellman, p. 194.</ref>

The question of a collective right versus an individual right was progressively resolved with the Fifth Circuit ruling in United States v. Emerson (2001), along with the Supreme Court's rulings in District of Columbia v. Heller (2008), and McDonald v. Chicago (2010). These rulings upheld the individual rights model when interpreting the Second Amendment. In Heller, the Supreme Court ruled that the Second Amendment protects an individual right.<ref name=“isbn1-933995-17-3”>Shapiro, p. 148.</ref> Although the Second Amendment is the only Constitutional amendment with a prefatory clause, such constructions were widely used elsewhere.<ref name=“Volokh1998”>Volokh, “Commonplace,” p. 793. “The Second Amendment is widely seen as quite unusual, because it has a justification clause as well as an operative clause. Professor Volokh points out that this structure was actually quite commonplace in American constitutions of the Framing era: State Bills of Rights contained justification clauses for many of the rights they secured.”</ref>

Meaning of "well regulated militia"

The term “regulated” means “disciplined” or “trained”.<ref name=“Merkel361”>Merkel, p. 361. “Well-regulated meant well trained, rather than subject to rules and regulations.”</ref> In Heller, the U.S. Supreme Court stated that ”[t]he adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training.“<ref name=“ReferenceA”>Heller, Opinion of the Court, Part II-A-2.</ref>

In the year prior to the drafting of the Second Amendment, in Federalist No. 29 Alexander Hamilton wrote the following about “organizing”, “disciplining”, “arming”, and “training” of the militia as specified in the enumerated powers:

Justice Scalia, writing for the Court in Heller : “In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the 'natural right of self-defence' and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right”:

	

</ref>}}

Justice Stevens in dissent:

</ref>}}

Meaning of "the right of the People"

Justice Antonin Scalia, writing for the majority in Heller, stated:

</ref>}}

An earlier case, United States v. Verdugo-Urquidez (1990), dealt with nonresident aliens and the Fourth Amendment, but led to a discussion of who are “the People” when referred to elsewhere in the Constitution:<ref name=“Kopel1999”>

</ref>

There were several different reasons for this amendment, and protecting militias was only one of them; if protecting militias had been the only reason then the amendment could have instead referred to “the right of the militia to keep and bear arms” instead of “the right of the people to keep and bear arms”.<ref>Crooker, Constance. Gun Control and Gun Rights, p. 55 (Greenwood Publishing Group, 2003).</ref><ref>Lund, Nelson. ”The Past and Future of the Individual’s Right to Arms“, Georgia Law Review, Volume 31, p. 26 (1996).</ref>

Meaning of "keep and bear arms"

In Heller the majority rejected the view that the term “to bear arms” implies only the military use of arms:

In a dissent, joined by Justices Souter, Ginsburg, and Breyer, Justice Stevens said:

</ref>}}

Supreme Court cases

]]

In the century following the ratification of the Bill of Rights, the intended meaning and application of the Second Amendment drew less interest than it does in modern times.<ref name=“Saul_Cornell_neither_model”>Cornell, Gun Control, p. 6. Neither of the two modern theories that have defined public debate over the right to bear arms is faithful to the original understanding of this provision of the Bill of Rights.</ref> The vast majority of regulation was done by states, and the first case law on weapons regulation dealt with state interpretations of the Second Amendment. A notable exception to this general rule was Houston v. Moore,

, where the U.S. Supreme Court mentioned the Second Amendment in an aside.<ref>Justice Story “misidentified” it as the “5th Amendment. Several public officials, including James Madison and Supreme Court Justice Joseph Story, retained the confusing practice of referring to each of the ten amendments in the Bill of Rights by the enumeration found in the first draft; the fifth article is the Second Amendment.</ref> In the ''Dred Scott'' decision, the opinion of the court stated that if African Americans were considered U.S. citizens, “It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right…to keep and carry arms wherever they went.”<ref>

</ref>

State and federal courts historically have used two models to interpret the Second Amendment: the “individual rights” model, which holds that individuals hold the right to bear arms, and the “collective rights” model, which holds that the right is dependent on militia membership. The “collective rights” model has been rejected by the Supreme Court, in favor of the individual rights model.

The Supreme Court's primary Second Amendment cases include United States v. Miller, (1939); District of Columbia v. Heller (2008); and McDonald v. Chicago (2010).

Heller and McDonald supported the individual rights model, under which the Second Amendment protects the right to keep and bear arms much as the First Amendment protects the right to free speech. Under this model, the militia is composed of members who supply their own arms and ammunition. This is generally recognized as the method by which militias have historically been armed, as the Supreme Court in Miller said:

<blockquote>The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.<ref>

</ref></blockquote>

Of the collective rights model that holds that the right to arms is based on militia membership, the Supreme Court in Heller said:

<blockquote>A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter.<ref>

</ref></blockquote>

''United States v. Cruikshank''

In the Reconstruction Era case of United States v. Cruikshank,

, the defendants were white men who had killed more than sixty black people in what was known as the Colfax massacre and had been charged with conspiring to prevent blacks from exercising their right to bear arms. The Court dismissed the charges, holding that the Bill of Rights restricted Congress but not private individuals. The Court concluded, ”[f]or their protection in its enjoyment, the people must look to the States.”<ref>Cruikshank, at 552.</ref>

The Court stated that “[t]he Second Amendment…has no other effect than to restrict the powers of the national government….”<ref>Cruikshank, at 553.</ref> Likewise, the Court held that there was no state action in this case, and therefore the Fourteenth Amendment was not applicable:

Thus, the Court held a federal anti-Ku-Klux-Klan statute to be unconstitutional as applied in that case.<ref name=“isbn1-933995-25-4”>Doherty, p. 14.</ref>

''Presser v. Illinois''

In Presser v. Illinois,

, Herman Presser headed a German-American paramilitary shooting organization and was arrested for leading a parade group of 400 men, training and drilling with military weapons with the declared intention to fight, through the streets of Chicago as a violation of Illinois law that prohibited public drilling and parading in military style without a permit from the governor.<ref name=“DeConde92”/><ref>

</ref>

At his trial, Presser argued that the State of Illinois had violated his Second Amendment rights. The Supreme Court reaffirmed Cruikshank, and also held that the Second Amendment prevented neither the States nor Congress from barring private militias that parade with arms; such a right “cannot be claimed as a right independent of law.” This decision upheld the States' authority to regulate the militia and that citizens had no right to create their own militias or to own weapons for semi-military purposes.<ref name=“DeConde92”>DeConde, pp. 92–3.</ref> However the court said: “A state cannot prohibit the people therein from keeping and bearing arms to an extent that would deprive the United States of the protection afforded by them as a reserve military force.”<ref name=“Cramer1994”>

</ref>

''Miller v. Texas''

In Miller v. Texas,

, Franklin Miller was convicted and sentenced to be executed for shooting a police officer to death with an illegally carried handgun in violation of Texas law. Miller sought to have his conviction overturned, claiming his Second Amendment rights were violated and that the Bill of Rights should be applied to state law. The Supreme Court ruled that the Second Amendment did not apply to state laws such as the Texas law:<ref name=“DeConde96”>DeConde, p. 96.</ref> “As the proceedings were conducted under the ordinary forms of criminal prosecutions there certainly was no denial of due process of law.”<ref>Miller, at 539.</ref>

''Robertson v. Baldwin''

In Robertson v. Baldwin,

, the Court stated in dicta that laws regulating concealed arms did not infringe upon the right to keep and bear arms and thus were not a violation of the Second Amendment:

''United States v. Miller''

In United States v. Miller,

, the Supreme Court rejected a Second Amendment challenge to the National Firearms Act prohibiting the interstate transportation of unregistered Title II weapons:

In a unanimous opinion authored by Justice McReynolds, the Supreme Court stated “the objection that the Act usurps police power reserved to the States is plainly untenable.”<ref>Miller, at 177–8.</ref> As the Court explained:

Gun rights advocates claim that the Court in Miller ruled that the Second Amendment protected the right to keep arms that are part of “ordinary military equipment.”<ref>

</ref> They also claim that the Court did not consider the question of whether the sawed-off shotgun in the case would be an applicable weapon for personal defense, instead looking solely at the weapon's suitability for the “common defense.”<ref>

</ref> Law professor Andrew McClurg states, “The only certainty about Miller is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact.”<ref>McClurg, p. 139. “But when all is said and done, the only certainty about Miller is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact. For example, Professor Eugene Volokh describes Miller as 'deliciously and usefully ambiguous' in an article about using the Second Amendment as a teaching tool in constitutional law. That is probably the most accurate statement that can be made about the case.”</ref>

''District of Columbia v. Heller''

Judgment

According to the syllabus prepared by the U.S. Supreme Court Reporter of Decisions,<ref name=“RecorderOfDecisionsHellerSummary”>

</ref> in District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held:<ref name=“RecorderOfDecisionsHellerSummary”/><ref name=“CornellHellerSummary”>

</ref>

:1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp.&nbsp;2–53.<ref name=“RecorderOfDecisionsHellerSummary”/><ref name=“CornellHellerSummary”/> ::(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp.&nbsp;2–22.<ref name=“RecorderOfDecisionsHellerSummary”/><ref name=“CornellHellerSummary”/> ::(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp.&nbsp;22–28.<ref name=“RecorderOfDecisionsHellerSummary”/><ref name=“CornellHellerSummary”/> ::© The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp.&nbsp;28–30.<ref name=“RecorderOfDecisionsHellerSummary”/><ref name=“CornellHellerSummary”/> ::(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp.&nbsp;30–32.<ref name=“RecorderOfDecisionsHellerSummary”/><ref name=“CornellHellerSummary”/> ::(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp.&nbsp;32–47.<ref name=“RecorderOfDecisionsHellerSummary”/><ref name=“CornellHellerSummary”/> ::(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp.&nbsp;47–54.<ref name=“RecorderOfDecisionsHellerSummary”/><ref name=“CornellHellerSummary”/> :2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller

s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp.&nbsp;54–56.<ref name=“RecorderOfDecisionsHellerSummary”/><ref name=“CornellHellerSummary”/> :3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp.&nbsp;56–64.<ref name=“CornellHellerSummary”/>

There are similar legal summaries of the Supreme Court's findings in Heller.<ref name=“WitkinSummary”>

</ref><ref name=“MooreSummary”>

</ref><ref name=“GlinSummary”>

</ref><ref name=“OLRResearchSummary”>

</ref><ref name=“OyezHellerSummary”>

</ref><ref name=“LCAVHellerSummary”>

</ref>

Notes and analysis

Heller has been widely described as a landmark decision.<ref>

</ref><ref>

</ref><ref>

</ref><ref>

</ref><ref>

</ref> To clarify that its ruling does not invalidate a broad range of existing firearm laws, the majority opinion, written by Justice Antonin Scalia, said:<ref>

</ref>

The Court's statement that the right is limited has been widely discussed by lower courts and the media.<ref>Harris, Andrew. “Illinois Bid for Rehearing of Gun-Carry Appeal Rejected”, Bloomberg News (February 22, 2013): “The U.S. Court of Appeals in Denver today ruled the constitutional provision doesn’t guarantee a right to carry a concealed firearm….”</ref><ref>Kirkland, Michael. “Scalia in '08 -- Right to bear arms is 'not unlimited'”, UPI (December 16, 2012).</ref><ref>Henigan, Dennis. Lethal Logic: Exploding the Myths That Paralyze American Gun Policy, p. 204 (Potomac Books 2009).</ref><ref>Epstein, Lee and Walk, Thomas. Constitutional Law: Rights, Liberties and Justice, p. 396 (SAGE 2012).</ref><ref>Huebert, Jacob. Libertarianism Today, p. 147 (ABC-CLIO, 2010).</ref> The majority opinion also said that the amendment's prefatory clause (referencing the “militia”) serves to clarify the operative clause (referencing “the people”), but does not limit the scope of the operative clause, because “the 'militia' in colonial America consisted of a subset of 'the people'….”<ref>''Heller'', Opinion of the Court, 128 S.Ct. 2790, 2791</ref>

Justice Stevens' dissenting opinion, which was joined by the three other dissenters, said:

</ref>}}

This dissent called the majority opinion “strained and unpersuasive” and said that the right to possess a firearm exists only in relation to the militia and that the D.C. laws constitute permissible regulation. In the majority opinion, Justice Stevens' interpretation of the phrase “to keep and bear arms” was referred to as a “hybrid” definition that Stevens purportedly chose in order to avoid an “incoherent” and “[g]rotesque” idiomatic meeting.<ref>Heller, Opinion of the Court, Part II-A-1-b.</ref>

Justice Breyer, in his own dissent joined by Stevens, Souter, and Ginsburg, stated that the entire Court subscribes to the proposition that “the amendment protects an 'individual' right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred”.<ref>

</ref>

Regarding the term “well regulated”, the majority opinion said, “The adjective 'well-regulated' implies nothing more than the imposition of proper discipline and training.”<ref name=“ReferenceA”/> The majority opinion quoted Spooner from The Unconstitutionality of Slavery as saying that the right to bear arms was necessary for those who wanted to take a stand against slavery.<ref>

</ref> The majority opinion also stated that:

The dissenting justices were not persuaded by this argument.<ref name=“urlJustices Rule for Individual Gun Rights - NYTimes.com”>

</ref>

Reaction to Heller has varied, with many sources giving focus to the ruling referring to itself as being the first in Supreme Court history to read the Second Amendment as protecting an individual right. The majority opinion, authored by Justice Scalia, gives explanation of the majority legal reasoning behind this decision.<ref name=“CornellHellerSummary”/> The majority opinion made clear that the recent ruling did not foreclose the Court’s prior interpretations given in United States v. Cruikshank, Presser v. Illinois, and United States v. Miller though these earlier rulings did not limit the right to keep and bear arms solely to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia (i.e., those in common use for lawful purposes).<ref name=“CornellHellerSummary”/>

Heller pertained to three District of Columbia ordinances involving restrictions on firearms amounting to a total ban. These three ordinances were a ban on handgun registration, a requirement that all firearms in a home be either disassembled or have a trigger lock, and licensing requirement that prohibits carrying an unlicensed firearm in the home, such as from one room to another.

<blockquote>Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster…. Because Heller conceded at oral argument that the District's licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumed that a license will satisfy his prayer for relief and did not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.“<ref name=“CornellHellerSummary”/></blockquote>

''McDonald v. Chicago''

On June 28, 2010, the Court in McDonald v. Chicago, 561 U.S. 3025 (2010) held that the Second Amendment was incorporated. This means that the Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government.<ref name=“nytimes.com”/> It also remanded a case regarding a Chicago handgun prohibition. Four of the five Justices in the majority voted to do so by way of the Due Process Clause of the Fourteenth Amendment, while the fifth Justice, Clarence Thomas, voted to do so through the amendment's Privileges or Immunities Clause.<ref>

</ref>

Justice Thomas noted that the Privileges or Immunities Clause refers to “citizens” whereas the Due Process Clause refers more broadly to any “person”, and therefore Thomas reserved the issue of non-citizens for later decision.<ref name=alien>Duignan, Brian. The U.S. Constitution and Constitutional Law, pp. 31-32 (Rosen Publishing Group, 2013).</ref> After McDonald, many questions about the Second Amendment remain unsettled, such as whether non-citizens are protected through the Equal Protection Clause.<ref name=alien />

United States Courts of Appeals decisions before and after ''Heller''

Before ''Heller''

Until District of Columbia v. Heller (2008), United States v. Miller (1939) had been the only Supreme Court decision that “tested a congressional enactment against [the Second Amendment].”<ref name=crs2a>CRS Report for Congress District of Columbia v.Heller: The Supreme Court and the Second Amendment April 11, 2008 Congressional Research Service T.J. Halsted,Legislative Attorney,American Law Division. Order Code RL34446 http://assets.opencrs.com/rpts/RL34446_20080411.pdf.</ref> Miller did not directly mention either a collective or individual right, but for the 62-year period from Miller until the Fifth Circuit's decision in United States v. Emerson (2001), federal courts recognized only the collective right,<ref>Cases v. United States, 131 F.2d 916 (1st Cir. 1942); United States v. Toner, 728 F.2d 115 (2nd Cir. 1984); United States v. Rybar, 103 F.3d 273 (3rd Cir. 1997); Love v. Peppersack, 47 F.3d 120 (4th Cir. 1995); United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971); United States v. Warin, 530 F.2d 103 (6th Cir. 1976); Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1983); United States v. Hale, 978 F.2d 1016 (8th Cir. 1993); Hickman v. Block, 81 F.3d 98 (9th Cir. 1996); United States v. Oakes, 564 F.2d 384 (10th Cir. 1978); and United States v. Wright, 117 F.3d 1265 (11th Cir. 1997)</ref> with “courts increasingly referring to one another's holdings…without engaging in any appreciably substantive legal analysis of the issue”.<ref name=crs2a/>

Emerson changed this by addressing the question in depth, with the Fifth Circuit determining that the Second Amendment protects an individual right.<ref name=crs2a/> Subsequently, the Ninth Circuit conflicted with Emerson in Silviera v. Lockyer, and the D.C. Circuit supported Emerson in Parker v. District of Columbia.<ref name=crs2a/> Parker evolved into District of Columbia v. Heller, in which the U.S. Supreme Court determined that the Second Amendment protects an individual right.

After ''Heller''

Since Heller, the United States courts of appeals have ruled on many Second Amendment challenges to convictions and gun control laws.<ref name=“Winkler14”>Winkler, “Heller's Catch 22,” p. 14.</ref><ref name=“AdamLiptak-3-17-09-NYTimes.com”>

</ref> The following are post-Heller cases, divided by Circuit, along with summary notes:

D.C. Circuit

  • Heller v. District of Columbia, Civil Action No. 08-1289 (RMU), No. 23., 25 On March 26, 2010, the D.C. Circuit denied the follow up appeal of Dick Heller who requested the court to overturn the new District of Columbia gun control ordinances newly enacted after the 2008 Heller ruling. The court refused to do so, stating that the firearms registration procedures; the prohibition on assault weapons; and the prohibition on large capacity ammunition feeding devices were found to not violate the Second Amendment.<ref>

    </ref>

First Circuit

  • United States v. Rene E.,

    – On August 31, 2009, the First Circuit affirmed the conviction of a juvenile for the illegal possession of a handgun as a juvenile, under

    and

    , rejecting the defendant's argument that the federal law violated his Second Amendment rights under Heller. The court cited “the existence of a longstanding tradition of prohibiting juveniles from both receiving and possessing handguns” and observed “the federal ban on juvenile possession of handguns is part of a longstanding practice of prohibiting certain classes of individuals from possessing firearms — those whose possession poses a particular danger to the public.”<ref>Rene E., at 12–15.</ref>

Second Circuit

Fourth Circuit

  • United States v. Hall,

    – On August 4, 2008, the Fourth Circuit upheld as constitutional the prohibition of possession of a concealed weapon without a permit.<ref name=“Winkler15”>Winkler, “Heller's Catch 22,” p. 15.</ref>

  • United States v. Chester, 628 F.3d 673 (4th Cir. 2010) – On December 30, 2010, the Fourth Circuit vacated William Chester's conviction for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of

    .<ref>

    </ref> The court found that the district court erred in perfunctorily relying on Heller's exception for “presumptively lawful” gun regulations made in accordance with “longstanding prohibitions”.<ref>Part III of the decision.</ref>

Fifth Circuit

  • United States v. Dorosan, 350 Fed. Appx. 874 (5th Cir. 2009) – On June 30, 2008, the Fifth Circuit upheld

    , which bans weapons on postal property, sustaining restrictions on guns outside the home, specifically in private vehicles parked in employee parking lots of government facilities, despite Second Amendment claims that were dismissed. The employee's Second Amendment rights were not infringed since the employee could have instead parked across the street in a public parking lot, instead of on government property.<ref>Weisselberg, pp. 99–100.</ref><ref>Text of decision in ''Dorosan''</ref>

  • United States v. Bledsoe, 334 Fed. Appx. 771 (5th Cir. 2009) – The Fifth Circuit affirmed the decision of a U.S. District Court decision in Texas, upholding

    , which prohibits “straw purchases.” A “straw purchase” occurs when someone eligible to purchase a firearm buys one for an ineligible person. Additionally, the court rejected the request for a strict scrutiny standard of review.<ref name=“Winkler15”/>

  • United States v. Scroggins,

    – On March 4, 2010, the Fifth Circuit affirmed the conviction of Ernie Scroggins for possession of a firearm as a convicted felon, in violation of

    . The court noted that it had, prior to Heller, identified the Second Amendment as providing an individual right to bear arms, and had already, likewise, determined that restrictions on felon ownership of firearms did not violate this right. Moreover, it observed that Heller did not affect the longstanding prohibition of firearm possession by felons.

Seventh Circuit

  • United States v. Skoien,

    – Steven Skoien, a Wisconsin man convicted of two misdemeanor domestic violence convictions, appealed his conviction based on the argument that the prohibition violated the individual rights to bear arms, as described in Heller. After initial favorable rulings in lower court based on a standard of intermediate scrutiny,<ref name=“SLAW_0714”>

    </ref> on July 13, 2010, the Seventh Circuit, sitting en banc, ruled 10–1 against Skoien and reinstated his conviction for a gun violation, citing the strong relation between the law in question and the government objective.<ref name=“SLAW_0714”/> Skoien was convicted and sentenced to two years in prison for the gun violation, and will thus likely be subject to a lifetime ban on gun ownership.<ref name=“urlCourthouse News Service”>

    </ref><ref name=“urlLeagleSkoien”>

    </ref> Editorials favoring gun rights sharply criticized this ruling as going too far with the enactment of a lifetime gun ban,<ref name=“urlJournalTimesSkoien”>

    </ref> while editorials favoring gun regulations praised the ruling as “a bucket of cold water thrown on the 'gun rights' celebration”.<ref name=“urlHeniganSkoien”>

    </ref>

  • Moore v. Madigan (Circuit docket 12-1269)<ref>

    </ref> – On December 11, 2012, the Seventh Circuit ruled that the Second Amendment protected a right to keep and bear arms in public for self-defense. This was an expansion of the Supreme Court's decisions in Heller and McDonald, each of which referred only to such a right in the home. Based on this ruling, the court declared Illinois's ban on the concealed carrying of firearms to be unconstitutional. The court stayed this ruling for 180 days, so Illinois could enact replacement legislation.<ref>

    </ref><ref name=“NYT20121218”>

    </ref><ref>

    </ref> On February 22, 2013, a petition for rehearing en banc was denied by a vote of 5-4.<ref>

    </ref> On July 9, 2013, the Illinois General Assembly, overriding Governor Quinn's veto, passed a law permitting the concealed carrying of firearms.<ref>

    </ref>

Ninth Circuit

  • Nordyke v. King, 2012 WL 1959239 (9th Cir. 2012) – On July 29, 2009, the Ninth Circuit vacated an April 20 panel decision and reheard the case en banc on September 24, 2009.<ref name=“volokh.com”>

    </ref><ref>

    </ref><ref name=“urlAppeals Court Sets Rehearing on Ruling That Eased Gun Restrictions - NYTimes.com”>

    </ref><ref>

    </ref> The April 20 decision had held that the Second Amendment applies to state and local governments, while also upholding an Alameda County, California ordinance that makes it a crime to bring a gun or ammunition on to, or possess either while on, county property.<ref name=“Nordyke”>Nordyke v. King (9th Cir. 2009)</ref><ref>

    </ref> The en banc panel remanded the case to the three-judge panel. On May 2, 2011, that panel ruled that intermediate scrutiny was the correct standard by which to judge the ordinance's constitutionality and remanded the case to the United States District Court for the Northern District of California.<ref>

    </ref> On November 28, 2011, the Ninth Circuit vacated the panel's May 2 decision and agreed to rehear the case en banc.<ref>

    </ref><ref>

    </ref> On April 4, 2012, the en banc panel sent the case to mediation.<ref>

    </ref> On June 1, 2012, the en banc panel dismissed the case, but only after Alameda County officials changed their interpretation of the challenged ordinance. Under the new interpretation, gun shows may take place on county property under the ordinance's exception for “events”, subject to restrictions regarding the display and handling of firearms.<ref>

    </ref>

See also

Notes and citations

References

Books

Periodicals

Other publications

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1791 in American politics 1791 in law 02 Militia in the United States United States federal firearms legislation Gun politics in the United States

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